Duke City Lumber Co. v. New Mexico Environmental Imp. Bd.

• Decision Date: 06 November 1980
• Docket Number: No. 4372,4372
• Citation: 1980 NMCA 160,95 N.M. 401,622 P.2d 709
• Parties: DUKE CITY LUMBER COMPANY, Appellant, v. NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD, Appellee.
• Court: Court of Appeals of New Mexico

Page 709

622 P.2d 709

95 N.M. 401

DUKE CITY LUMBER COMPANY, Appellant, v. NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD, Appellee.

No. 4372.

Court of Appeals of New Mexico.

Nov. 6, 1980.

Rehearing Denied Nov. 17, 1980.

[95 NM 401] John R. Cooney and Susan R. Stockstill, Modrall, Sperling, Roehl, Harris & Sisk, Albuquerque, for appellant.

Jeff Bingaman, Atty. Gen., Bruce S. Garber, Weldon L. Merritt, Asst. Attys. Gen., Santa Fe, for appellee.

OPINION

HERNANDEZ, Judge.

This is an appeal from the action of the Environmental Improvement Board (Board) denying a variance from an air quality control regulation.

The appellant has operated a sawmill at Espanola, New Mexico, since the early 1960's. At the time the plant has constructed a wigwam incinerator was installed to burn all of the wood waste generated by the operation, approximately 247,000 cubic yards. Beginning in 1966 appellant began to investigate methods of utilizing this woodwaste. Since that time appellant has entered into contracts with various firms for the sale of approximately 93% of this waste. The remaining 7% is incinerated. However, because the incinerator was designed to burn a much larger volume of waste the incineration of the remaining waste results in smoke having an opacity in excess of 20%. In 1975 and again in 1977 and 1978, the appellant and appellee entered into agreements entitled "assurance of discontinuance." The essence of these were that appellant was endeavoring to sell or utilize all of the woodwaste and in the interim it might be in violation of air quality control regulation 402(A); that appellant would continue to use its best efforts to utilize all of the wood refuse and also seek to minimize the capacity of the omissions.

On February 8, 1979, appellant filed a petition for variance of Air Quality Control Regulation 402(A). A public hearing was held on June 28, 1979. At its meeting of October 12, 1979, the appellee denied appellant's petition citing the following reasons for its decision:

(1) There was a great deal of community objection to emissions from the Espanola facility.

(2) The Board has been very patient with Duke City over the years.

(3) Although Duke City has made strides toward solving the woodwaste problem, the hearing record does not support the variance petition.

(4) The record shows that other alternatives are available.

The pertinent parts of Regulation 402(A) read as follows:

402. Woodwaste Burners (Adopted January 10, 1975) A. After May 1, 1975, except as provided in Subsection A.1, A.2, Section E and Section G, no person owning or operating a woodwaste burner shall permit cause, suffer or allow emissions from the woodwaste burner to equal or exceed an opacity of 20 per cent; and no person owning or operating a woodwaste burner which operates during night time hours shall permit the temperature of the woodwaste burner exhaust gases to be lower than 750 degrees F. during night time hours unless the owner or operator can demonstrate, to the satisfaction of the department, that a lower temperature can achieve an opacity of 20 per cent or better.

We remand for further consideration and proceedings.

There are certain preliminary matters which must be stated in order to view this matter in proper perspective. First, the hearing which developed the evidence upon which the appellee made its decision was quasi-judicial in nature.

"(Q)uasi-judicial is a term applied to administrative boards or officers empowered to investigate facts, weigh evidence, draw conclusions as a basis for official actions, and exercise discretion of judicial nature." Thompson v. Amis, 493 P.2d 1259, 208 Kan. 658 (1972).

Second, the appellant had the burden of proving its entitlement to a variance.

"(T)he courts have uniformly imposed on administrative agencies the customary common-law rule that the moving party has the burden of proof." International Min. & C. Corp. v. New Mexico P. S. Com'n, 81 N.M. 280, 466 P.2d 557 (1970).

However, it should be noted that in judicial and quasi-judicial proceedings:

" 'Burden of Proof' is a term which describes two different concepts, (1) the burden of persuasion, which under the traditional view never shifts from one party to the other, at any stage of the proceedings, and (2) the burden of going forward with the evidence, which may shift back and forth between the parties as the trial progresses." Ambrose v Wheatley, 321 F.Supp. 1220 (D.C.Del.1971).

It has long been recognized that "proof" is an ambiguous word, and that any "burden of proof" has as its elements a burden of production or going forward and a burden of persuasion. It is said that although a plaintiff always has the burden of persuasion, which never shifts, he may produce sufficient evidence that his opponent's failure to adduce contradictory proof either may lead to a decision for plaintiff, or must lead to such a ruling. Willingham v. Secretary of Health, Education and Welf., 377 F.Supp. 1254 (D.C., S.D.Fla.1974).

Once the party who bears the burden of proof has made a prima facie showing the burden of going forward with the evidence shifts to the opposing party. Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972).

By prima facie showing is meant such evidence as is sufficient in law to raise a presumption of fact or establish the fact in question unless rebutted. Goodman v. Brock, supra.

Section 74-2-8(A), N.M.S.A.1978, lists the criteria which must be considered in granting or denying variances:

The board may grant an individual variance from the limitations prescribed under the Air Quality Control Act, any regulation of the board, or any permit condition whenever it is found, upon presentation of adequate proof, that compliance with any part of that act, any regulation of the board, or any permit condition will result in an arbitrary and unreasonable taking of property or will impose an undue economic burden upon any lawful business, occupation or activity, and that the granting of the variance will not result in a condition injurious to health or safety.

Section 74-2-2(B), N.M.S.A.1978:

B. "air pollution" means the emission, except as such emission occurs in nature, into the outdoor atmosphere of one or more air contaminants in such quantities and duration as may with reasonable probability injure human health, animal or plant life, or as may unreasonably interfere with the public welfare, visibility or the reasonable use of property.

Air Quality Control Regulation 401(J)(2):

"opacity" means the degree to which emissions reduce the transmission of light and obscure the view of an object in the background; * * *

Air Quality Control Regulation 100(Z):

"smoke" means small gas-borne particles resulting from incomplete combustion, consisting predominantly, but not exclusively, of carbon, soot and combustible material; * * *

A summary of appellant's evidence is as follows: Appellant's sawmill as located on a 60 acre tract leased from the Pueblo of San Juan. The lease contains this specific provision: "waste materials, including sawdust, shall be burned or otherwise disposed of as they accumulate * * * and unreasonable piles of waste material shall not accumulate on the premises." Appellant employs 94 people at its Espanola plant and the annual payroll is approximately $1,125,000. When constructed, the "wigwam" burner cost in excess of $100,000.00. When the State air pollution standards were enacted appellant spent between $30,000 and $40,000 in modifying this burner to improve its efficiency and cut down on the amount of smoke produced. Since the early 1960's it has been the policy of appellant to try and utilize, as much as possible, of the waste material produced by the plant. Currently appellant is utilizing approximately 97% of the waste materials. In order to do this appellant has entered into several contracts obligating itself to deliver all of the sawdust, green sawdust, wood chips and bark produced by the plant. Appellant's staff engineer studied the cost and problems involved in landfill of wood waste and came to the conclusion that it was a short term expedient with serious long term consequences because of the indefinite and continuous possibility of fire and the difficulty in extinguishing such a fire. Since appellant is presently burning about 75 cubic yards of waste per day it would take between 10 and 12 truck loads to haul it to a landfill which entails the cost of the trucks and drivers plus the pollution produced by the trucks. Appellant asked the City Manager if it could use the city landfill for disposal of the waste that was not incinerated and was told, that on the advice of Mr. Ray Baca of the Environmental Improvement Division, it could not. Mr. Baca had written the City Manager that they should refuse such a request because of the volume of the waste and because it "may cause a major fire problem." The capacity of a sanitary landfill is between 6,000 and 10,000 cubic yards of debris per acre. At 75 cubic yards of wood waste per day the total would be about 18,000 cubic yards per year which translates into between 21/2 and 3 acres of land per year to dispose of it. Appellant's officials testified that even though they were accumulating the wood waste in the incinerator and burning approximately once or twice a week it was not possible to remain within the 20% opacity. The only alternatives were to build several incinerators with varying capacities or to close the mill for several months out of every year or to close it completely, all of which would entail a considerable financial sacrifice.

The principal witness for the Board was Mr. David J. Duran, Program Manager for the Enforcement Section of the Air Quality Control Section of the Environmental Improvement Division. He testified that on a visit to appellant's mill on June 18, 1979, about 80 to 90 percent of the material in the incinerator were slabs which he felt could be utilized, and if the slabs were taken out the remaining...